Diary of an arrest: Was an October arrest in Paso Robles an overly aggressive bungle or a messy success?

The first punch appears to connect with Justin Silvernale’s stomach, roughly one minute after the second officer arrives on scene and about four seconds after the other officer’s failed attempt to place Silvernale in handcuffs. Paso Robles Officer Michael Rickerd followed with three quick jabs to Silvernale’s side, before he, Silvernale, and Officer Jeffrey DePetro slammed into the side of the black, reportedly stolen Chrysler 300.

By the end of the evening of Oct. 11, 2014, both Silvernale and Rickerd were taken to the hospital for bite wounds and other injuries. Silvernale was taken to jail, where he remained as of this writing, facing 10 felony and misdemeanor charges, which include, among others, resisting arrest; battery of an officer; attempting to take an officer’s gun; and injuring DePetro’s dog, Ir.

According to DePetro’s report, Silvernale dealt the first blow, though the video recording from his car’s dashboard doesn’t provide a clear view of that punch.

STILL TAKEN FROM PASO ROBLES POLICE IN-CAR FOOTAGE

USE OF FORCE: Justin Silvernale was arrested and charged with 10 felonies and misdemeanors after an incident on Oct. 11, 2014, when Paso Robles police officers Jeffrey DePetro and Michael Rickerd forcefully arrested him, using DePetro’s dog in the process.

Paso Robles police were dispatched to a turn-off near a storage-unit complex on a hot October evening, where a homeless man had called to report that an unknown man was behaving strangely, and an escalating verbal altercation was becoming physical. When DePetro arrived, Silvernale was standing to the side as Rickerd spoke with the homeless man. The ID Silvernale provided to DePetro wasn’t his own, according to the police report, but that of an Arizona man about 20 years older. The black Chrysler, DePetro soon learned, had been reported stolen from a car rental lot at SFO International Airport.

The difficult part of all this is what transpired next. Based on the only video of the incident, Silvernale’s attorney, Raymond Allen, is now arguing that Silvernale was the victim.

For the most part, Allen declined to comment on the case. He also declined to let his client be interviewed. But the video of the arrest speaks for itself, Allen said, and he invited others to watch it and reach their own conclusions.

“To my mind, it’s an excessive use of force,” Allen said about how Silvernale was treated by DePetro and Rickerd. “And it’s unfortunate, because most of the peace officers do a good job.”

If anything has been made clear by the recent months of protests and rioting over police tactics, particularly against African Americans (which Silvernale is not), it’s that in many ways police and the public do not see the same events in the same way. What Allen sees as excessive—indeed others might as well—Paso Robles Chief of Police Robert Burton describes as a job well done.

“To summarize, the two officers involved in this very dangerous confrontation with a wanted and violent parolee acted with professionalism and courage,” Burton said in a 1 1/2-page written response to 20 itemized questions about Silvernale’s arrest. “This arrest took a violent criminal off the streets of our community and likely prevented a violent confrontation with a community member. Our officers’ actions were consistent with our policy and the law.”

When it comes to the case of Justin Silvernale, however, it’s the how—not the what—that matters.

‘Drz!’

When DePetro arrived on that October evening, Rickerd was already on the scene talking with the homeless man who had called the police to report that an unknown man—later identified as Silvernale—was becoming increasingly irrational and confrontational. The homeless man was braiding fishing net at the time.

Rickerd didn’t record video from his car. In the video from DePetro’s car, Silvernale can be seen standing by the black Chrysler while Rickerd interviews the homeless man. DePetro gets out of his car and appears to radio in the Chrysler’s license plate number as he walks toward Silvernale.

DePetro asks for ID, and Silvernale roots through his pockets briefly before heading back toward the car. As he approaches the rear passenger window, Silvernale lifts both hands in the air and says, “I’m grabbing my wallet. Don’t think I’m grabbing a gun and pull a gun out.” Based on the video, it appears as an intentionally non-threatening gesture. DePetro later wrote in his report, “I thought that was a very odd statement to make and followed him over to the car.”

Silvernale hands over his ID and returns to the rear of the car, appearing to adjust the bottom of his black T-shirt. DePetro also noted this in his report.

“I observed Silvernale pull his shirt down to cover the top of his shorts which made me concerned he might have a weapon.”

In his own report, Rickerd wrote that Silvernale was “extremely sweaty and his eyes were wide open as if he was very excited.” Allen, however, argued in a recent court motion that the high in Paso Robles that day was 98 degrees.

DePetro looks at the ID in the video, and wrote later that it was an Arizona license, with a birth year listed as 1960. Police later learned that Silvernale was born in ’84. At the same time, DePetro confirms with dispatch, which reportedly had told him the car was stolen. He turns back to Silvernale and asks if he has any guns, knives, or drugs. Silvernale responds: “No.”

Then comes the turning point.

DePetro asks Silvernale to place his hands behind his back, and Silvernale responds by placing both hands in the air.

As Silvernale shifts his attention to Rickerd, DePetro reaches out and grabs him by the right arm. Rather than securing a firm hold of Silvernale, the two spin around, which is when DePetro said Silvernale punched him in the side, according to his report. By this point, Rickerd is in the scuffle. He reaches over DePetro and grabs Silvernale by the shirt as the group of three men spins in circles.

Rickerd appears to punch Silvernale in the side of the stomach, then another three times before he and DePetro slam Silvernale into the side of the car. Pressed against the car, Silvernale bends over (Rickerd reported that he delivered knee strikes and punches to get him on the ground) then attempts to straighten himself, providing a target for a solid right hook from Rickerd. Though the audio quality is poor, there is the clear hard, smacking sound of knuckles connecting with cheek.

While the men continue to struggle, Rickerd loops his arm around Silvernale’s neck and twists him to the ground. In the process, DePetro trips and falls as well, then quickly stands up, looks at the two men on the ground, looks back to his car, looks again at his partner wrestling with Silvernale, and begins to run for the car.

“You gonna help me?” Rickerd says.

“Yeah, I’m gonna get my dog,” DePetro shouts as he jogs back to the car.

Five months earlier, Paso Robles Magazine had described DePetro’s dog, Ir, as a 100-pound German shepherd born and weaned in the Czech Republic before receiving training at the Menlo Park-based Witmer-Tyson Imports. In his report, DePetro wrote that he tried to use a remote to open the door to his car and release Ir, but it wasn’t working. In the video, there’s the sound of a door handle clicking as Ir yelps from inside the car.

“Fucking door won’t open!” DePetro yells.

Behind him, Rickerd continues to pin Silvernale to the ground, while Silvernale thrashes his legs and appears at one point to connect his knee with Rickerd’s head. DePetro wrote that he “observed the suspect punch and knee Officer Rickerd in the face and head several times,” and Silvernale had tried to knee Rickerd approximately seven to eight times, connecting with about two to three. In his own report, Rickerd wrote “Silvernale was able to deliver three or four knee strikes to the side of my head, jaw, and side.”

Back at the car, once Ir is free, he runs alongside DePetro toward Rickerd and Silvernale, but jumps over Silvernale’s legs and hooks right toward the homeless man watching nearby. DePetro screams at the dog, who runs back to the pile of three men wrestling on the ground, stands behind Rickerd, and begins to bark.

When asked about what happened next, Burton said that it’s challenging using a “living, breathing, thinking animal as a use-of-force option,” but defended the officer’s actions as “consistent with our policy.”

However, Maria Haberfeld, who chairs the Department of Law and Police Science at John Jay College in New York (she’s been quoted on police use-of-force tactics by such news outlets as the The New York Times, The Washington Post, and CNN) said she saw “a complete misuse” of the dog.

“I have never seen an event like this,” she told New Times by phone.

DePetro reaches over to grab Ir by the collar and pulls the dog back toward him. Rickerd can be heard saying in a calm, assertive tone, “You’re going to roll over now. Roll over now. You are under arrest.” It’s the first time one of the officers can be heard telling Silvernale he’s under arrest.

At the same time, DePetro screams so loudly that it’s difficult to understand the first part of his command.

“… or my dog’s gonna bite you!” he yells at Silvernale, who continues to squirm.

Rickerd then delivers another punch to Silvernale’s face, and DePetro forces the dog onto his legs. As he wrestles with Ir, DePetro appears to yell, “Die! Die, die, die!”

According to Burton, DePetro was giving the command for “bite,” which is “drz” in Czech—pronounced “dursh.”

According to the reports, Rickerd said Silvernale attempted to reach around and grab his gun, and the officer had to elbow and punch Silvernale in the face to stop him. In the video, the punches and elbows are clear, though it’s difficult to see the arm Silvernale reportedly used to grab the gun. Rickerd can be heard at one point saying, “… gun,” then reaching toward his back. Later, he also told other officers that Silvernale had reached for the gun.

Silvernale yelps and cries as Ir bites at his legs and feet. In the scuffle, Rickerd also received a bite to his arm, for which DePetro later apologizes profusely (“Shit happens,” Rickerd responds).

Throughout the scuffle, DePetro repeatedly shouts, “drz” and “quit resisting.”

“Quit resisting!” he shouts as the dog continues to bite Silvernale, who can be heard shrieking and seen thrashing his legs.

Later, about three minutes after DePetro had arrived, Ir continues to bite at Silvernale’s legs. DePetro yells, “drz, drz!” and Silvernale responds “please.” With one hand on the dog, DePetro uses his free hand to punch Silvernale in what appears to be either the lower stomach or in the groin.

“Quit resisting!” he yells again.

During the roughly three minutes and 45 seconds that Ir is viewable in the video, DePetro yells “drz” at least 35 times, but “quit resisting” nine times.

As the sound of police sirens creeps into the audio, Ir breaks from the pack, runs around the area with his tail wagging. DePetro calls to the dog, who pays little attention to his handler, and DePetro returns his own attention back to Silvernale.

In his report, DePetro said he used the dog because other methods—using a handgun, pepper spray, impact weapons, or a Taser—were not as viable. He wrote that he worried Silvernale had a weapon and would flee to surrounding neighborhoods.

“… the dog’s use allowed me to have more pain compliance control …,” DePetro wrote.

The Paso Robles Police Department canine policy does not specifically state how or whether dogs should be used to achieve pain compliance. Likewise, the department’s use-of-force policy outlines pain compliance techniques but does not specifically reference the use of dogs. Both policies give officers a degree of discretion, so long as that discretion is reasonable. Additionally, the canine policy specifically requires officers to survey the potential danger to bystanders and officers before deploying a dog.

In the case of Silvernale, Ir first approached the bystander, and bit an officer. Asked about this, and whether dogs can be used for pain compliance in the way DePetro deployed Ir, Burton said it was unfortunate that an officer was bitten, but the use of force was consistent with policy.

“Our canines receive regular training, which includes common scenarios that canine teams might encounter while on patrol,” Burton said in his written statement. “However, it is difficult to anticipate every situation a team might encounter and how the canine will respond. This canine deployment was subsequently reviewed by our training teams to improve effectiveness for future deployments.”

For Haberfeld, the use of dogs and other animals is an “artifact of the middle ages.” She said physical force—such as punches and other strikes—is part of regular police work when a suspect is resistant. But in this case, she said, “The way it evolved, I don’t really understand why they needed the dog.”

In a motion filed with the SLO County Superior Court, Allen claimed “any resistance the defendant may have shown was exhibited only to the extent necessary for self-defense given the Officers’ immediate and excessively forceful contact with him.”

Silvernale was charged with assaulting Ir, based on reports that he had kicked the dog repeatedly. Allen, however, argued that Silvernale “screamed in pain and fear, and continued to struggle and kick in an attempt to prevent the K-9 from biting him.” In addition to being overly aggressive, Allen claims police cooked their reports and inserted information after the fact to justify the use of force.

He asked that the court provide personnel records for both officers, citing the videos recorded at the scene as evidence for aggressive use of force, evidence tampering, and misstating the facts.

Paso Robles City Attorney Michael Seitz filed a motion of opposition to Allen’s request for those records. In support of his own argument, Seitz wrote, “The Defendant immediately became confrontational and attempted to keep his hands away from the Officer so he could not be handcuffed.”

(Also in that motion, Seitz mistakenly wrote that the arrest occurred Jan. 11, 2015, and in a subsequent paragraph improperly identified the two officers in one sentence, followed by the correct names in another sentence.)

After reviewing those records behind closed doors, Judge Rita Federman ruled on Feb. 26 that there were “no records that are responsive to the request for disclosure.”

Tactics

As Silvernale continues to make court appearances—his preliminary hearing is scheduled for March 26—his defense is already building points for the argument that he wasn’t resisting arrest, that he didn’t instigate the fight, and that the police used a number of questionable reasons (he was sweaty on a 90-plus degree day, he was a flight risk despite being apparently cooperative, and he was accused of resisting arrest despite not being told he was under arrest) to justify their actions.

At the same time, the department and the city are building the case that the officers did what was needed to detain a man they allege to be a wanted criminal and parole violator in a stolen car with a checkered history, and the police had reason to believe he had weapons or was otherwise a danger.

An outside viewer might watch the video and see that Silvernale is being cooperative, doing nothing more than passively raising his hands and asking why he’s being detained—that he only fought as a matter of self-defense when he was outmatched two to one. Similarly, another viewer might watch the same video and see a combative, suspicious criminal who could have avoided what happened had he just acquiesced, rolled over when he hit the ground, and given up when the dog was brought out.

Haberfeld, of John Jay College, was the only uninvolved person who agreed to watch the video and discuss what happened. She has previously been quoted in and written articles calling for a steady escalation of force by officers, the so-called force continuum model. Even so, she said situations escalate quickly and sometimes a punch or other hard strike is necessary.

“Unfortunately, I always keep saying this because the use of force doesn’t look nice,” she said.

However, she said DePetro’s use of Ir for pain compliance went against her understanding of the term, as it’s not supposed to cause “lasting injury.”

“Pain compliance is a legitimate term, but pain compliance has to be used when everything else doesn’t work,” she said. “And to me, just looking at the situation, it’s hard for me to imagine why other things did not work.”

The state Department of Justice doesn’t maintain records on use of force and holds no model policy for police, instead relying on each department to adopt its own policies. The U.S. Department of Justice National Institute of Justice declined to comment on ongoing cases when asked to review the video, as did the National Association for Civilian Oversight of Law Enforcement.

Jim Stark, a trainer with Witmer-Tyson Imports, said he’d seen the Silvernale arrest video, but wouldn’t say how he got it or comment on the use of the dog. Hypothetically, he said that just because someone’s on the ground “does not mean that they still are not a threat to officers.” Also more generally, he said that it’s appropriate to use the dog if someone is on the ground and resisting an officer.

Chief Burton said in his response, “Certainly, this arrest and the events surrounding it were anything but usual for our officers,” adding that he feels the use of force was appropriate and the video will help “our community to understand what transpired that evening and what a perilous and complex job police officers perform.”

Furthermore, he said the department, like others in the state and country, doesn’t rely on the continuum model. Instead, Paso officers “are taught to use the most appropriate and reasonable level of force based on what the immediate threat may be.” He said that Silvernale was combative again after the arrest, when he was taken to Twin Cities Community Hospital for treatment before being booked in the SLO County Jail.

New Times obtained a handheld video that shows Silvernale pinned under three men in what appeared to be a hospital. In the video, a nurse gives him three injections to sedate him before the men re-secure his ankle restraints and place him on a gurney. A video from Rickerd’s car, which wasn’t turned on until after the initial fight (“And it was off the whole time,” an officer can be heard saying when he checks the camera. “Our best video; not on.”) shows Silvernale breathing erratically and talking to himself nonsensically in the back of the car. At the hospital, one of the two officers who drove him there asks, “Are we going to have any issues with you, yes or no?”

“You’re gonna have plenty,” Silvernale responds.

“Well OK; at least you’re honest.”

But Silvernale appears to go in without a fight. After entering the hospital, there’s no video of the event, and the audio degrades and cuts out while Silvernale can be heard arguing with hospital staff.

‘Lucky you’re still breathing’

After the fight, three more officers arrive before DePetro breaks from the pack and puts Ir back in his car. The officers successfully handcuff Silvernale, and more officers arrive over the next few minutes, including a sergeant to review the situation.

At about 6:21 p.m., according to the video timestamp, one officer leans in and asks if Silvernale is from Paso, then says, “Well, you should be careful how you treat the police here in Paso Robles, man. You’re lucky you’re still breathing.”

At about 6:31, Silvernale attempts to roll from his stomach to his back and an officer pushes him back over.

“You had best stop fighting with the cops, do you get that?” one of the officers says.

“You touch my hand, you’re gonna lose a finger,” another officer yells while kneeling behind Silvernale, who is in full restraints.

Burton didn’t respond to New Times’ questions about the officers’ comments, but he did respond briefly about drugs.

While on the ground, Silvernale became increasingly incoherent, telling the officers, “Be careful, I’m carrying a child,” after saying, “I don’t do drugs.”

In response to the drugs comment, one officer says, simply, “That’s not true.”

Burton said drugs were suspected. However, Silvernale wasn’t charged with possession or being under the influence. In his response, Burton wrote that “we are not currently aware of any toxicology results” from the hospital.

‘Really, really normal family’

Silvernale’s mom, Tracey Richartz, hasn’t seen the video of her son’s arrest; she’s not sure if she wants to. In May, he reappeared at her home a few miles south of Seattle. At the time, she hadn’t seen her son for a while; he’d been in and out of trouble, which started after he began having problems with drugs.

There was something wrong with him, she remembered of his reappearance. Although Silvernale had attended private school, and though “he comes from a really, really, normal family,” Richartz said her son fell into an unfortunate drug situation, one that resulted in regular run-ins with the law and disappearances from his family.

According to a Washington state records search, Silvernale has nine previous charges listed under his name between 2004 and 2008, in and around the Seattle area. He wasn’t ever violent at home, Richartz said, and though he’d been in fights, he wasn’t one to pick them. Asked about her son now, she said, “it’s difficult to know that child, because that was not the child I raised.”

Silvernale loved animals. He had a yellow lab, Sorrell, from the time he was 5 years old until he was 19. He even cared for Richartz’s dog when he came back, which makes her question the charges that he would hurt an animal.

When he showed up at her door, Richartz said she sought out psychiatric treatment for her son. She said the “mental issue was all about drugs.” But she got him treatment, and Silvernale even started taking medication, which seemed to help. Things were good for a while, and Silvernale got an opportunity to work on a commercial fishing boat with a friend in Alaska. He did that for about three months, but when Richartz saw him again, she suspected he had fallen back into drugs. Around September, Silvernale told her something about heading down to California. It was the last she heard from him until his arrest in October.

And really, she thinks it’s better for him to be in jail, “until he can go through some sort of program.” Even so, she said she didn’t want to see a video of her son getting beat up.

“I feel like he’s safer there [in jail] right now,” she said, “especially with the stress of this happening.”

For the police, however, that stress was part of a job well done: They got the bad guy.

A few minutes before DePetro’s video cuts off, he describes to another officer what happened.

“I don’t even think I had a chance to tell him you’re under arrest,” he says.

Later, when DePetro gets his sergeant on the phone, he tells him he had to use Ir, and regretfully explains that Rickerd got bit. Even so, they got the bad guy.

“I went to ask him if we could search him and he started getting squirrely, so I grabbed him and then he started fighting us,” DePetro says over the phone. “… I’m not sure if he pulled Smokey [translation: bit Rickerd] first or the bad guy first, but I got him and pulled him around on the bad guy, then …”

On Oct. 11, 2014, Justin Silvernale was arrested after an altercation with Paso Robles Police Officers Jeffrey DePetro and Michael Rickerd. This video contains an excerpt of the footage captured by DePetro's in-car camera.

Following his arrest on Oct. 11, 2014, Justin Silvernale was taken to Twin Cities Community Hospital for treatment of his wounds, which included bites from Officer Jeffrey DePetro's dog, Ir. New Times obtained this handheld footage of events in the hospital.